Attorneys General Becerra and Healey Urge HHS Not to Finalize Rule That Would Permit Healthcare Discrimination During Global COVID-19 Pandemic

The proposed rule would eliminate protections against discrimination for women, people with disabilities, the LGBTQ community, and other vulnerable populations  

SACRAMENTO – California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey today co-led a multistate coalition in sending a letter to the U.S. Department of Health and Human Services (HHS) urging it not to finalize its proposed regulation, “Nondiscrimination in Health and Health Education Programs or Activities” (Section 1557 Rule). Section 1557 is an anti-discrimination provision that prohibits discrimination in healthcare based on gender, race, ethnicity, sex, age or disability. If finalized, the proposed changes to this provision would seriously undermine the Affordable Care Act’s (ACA) critical anti-discrimination protections at a time when they are most needed to help address the COVID-19 pandemic. 

“Authorizing discrimination in healthcare is not only illegal, it is incredibly dangerous, and doing so in the midst of this global pandemic is nothing short of deadly,” said Attorney General Becerra. “We urge HHS not to move forward with this foolish rule that would threaten communities that already struggle disproportionately to access needed care – communities of color, women, immigrants, LGBTQ individuals, and disabled Americans. We should devote all our resources to the COVID-19 response and recovery efforts, not make it harder on our healthcare professionals and Americans seeking life-saving healthcare.”  

The proposed rule would roll back anti-discrimination protections for communities of color, women, LGBTQ individuals, those with limited English proficiency, and people with disabilities by undermining critical legal protections that guarantee healthcare as a right. Data shows that the COVID-19 pandemic is already exacerbating racial and ethnic disparities in healthcare that the ACA attempted to address, particularly in states that have not expanded Medicaid. Communities of color have been disproportionately impacted, and recently more than 100 national and local organizations signed on to an open letter to the healthcare community about how COVID-19 may pose an increased risk to the LGBTQ population. HHS itself has long noted that discrimination within the healthcare system contributes to poor coverage and health outcomes, and exacerbates existing health disparities in underserved communities. Individuals who have experienced discrimination in healthcare often postpone or forgo needed healthcare, resulting in adverse health outcomes.  

In the letter, the attorneys general argue that moving forward with this rule in the midst of this unprecedented healthcare crisis will create unnecessary confusion and administrative burdens for state agencies, healthcare providers, and patients at a time when the healthcare system is battling to save lives. Data suggests that increased access to healthcare could assist with prompt COVID-19 detection and increase early treatment, which helps diminish spread of the disease. For these reasons, the attorneys general warn the Administration that making this major regulatory change in the midst of the current crisis is not only irresponsible, it is potentially deadly.

Joining California Attorney General Becerra and Massachusetts Attorney General Healey in filing the comment letter are the attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia. 

Today’s letter is Attorney General Becerra’s latest effort in his fight to protect the ACA and ensure Californians have access to high quality affordable care. In August 2019, Attorney General Becerra and Attorney General Healey led a multistate comment letter opposing the 1557 proposed rule. Attorney General Becerra also called on the Trump Administration to open a Special Enrollment Period for the ACA due to the COVID-19 pandemic. He is also currently leading a coalition of 21 attorneys general in defending the ACA and the healthcare of millions of Americans in the Supreme Court. 

A copy of the letter can be found here.